Pharmacists Ruled Not Liable for Sale of Defective Drugs

SAN FRANCISCO —  The state Supreme Court, placing a limit on suits by women suffering from cancer related to the anti-miscarriage drug DES, ruled Monday that pharmacists are not liable for dispensing drugs that later are deemed to be defective.

By a 4-3 vote, the court, in an opinion by Justice Stanley Mosk, concluded that pharmacists, like doctors, cannot be held liable for selling a defective drug unless negligence is proved.

Manufacturers of DES--an anti-miscarriage drug prescribed to pregnant women during the post-World War II baby boom and since linked to cancer in their daughters--remain liable and suits against them will proceed, lawyers involved say.

More than 100 such suits are pending in this state, and manufacturers nationwide already have paid out millions.

Mosk, who in 1980 wrote a landmark opinion that helped open up DES litigation in California, rejected arguments that pharmacists are like other retailers, such as car dealers, who can be held liable for selling defective products.

The decision emphasized that pharmacists act on doctors’ orders when they fill prescriptions. The opinion pointed out that doctors are not liable for drugs later deemed to be defective.

“It is pure hyperbole to suggest, as does plaintiff, that the role of the pharmacist is similar to that of a clerk in an ordinary retail store,” Mosk wrote, pointing to a state law that, while not expressly shielding druggists from liability, implies that they cannot be sued for selling defective drugs.

The court adopted arguments made by the pharmacies’ trade groups, the state board that licenses pharmacists and the California Medical Assn. that a finding against pharmacists would increase the cost of drugs and might have prompted pharmacists to stop selling drugs that are life-saving but have strong side effects.

“It would have been a terrible travesty to the health profession had they ruled otherwise,” said Richard Waugh, who represented the American Pharmaceutical Assn. and the California Pharmacists Assn.

In dissent, Chief Justice Rose Elizabeth Bird termed Mosk’s opinion “unfortunate” and “elitist” for failing to find pharmacists liable, while other decisions by California courts have found car dealers and other retailers liable for defective products.

“Armed with extensive knowledge of the products he or she sells, the retail druggist may be better equipped than other retailers to identify defective products,” Bird wrote.

Bird, joined by Justices Allen Broussard and Otto M. Kaus, went on to say that the ruling “at a more fundamental level . . . suggests a weakened commitment” by the majority to the court’s record of finding liability when products are deemed defective.

Monday’s ruling comes from a court that was the first in the country to open up DES litigation by holding in a landmark 1980 case that even if so-called DES daughters did not know the specific maker of the DES taken by their mothers, they could name all DES manufacturers in their suits. Any money damages would be paid based on the manufacturers’ share of DES market.

Limit on Liability

However, in a second aspect of the case, the court placed a limit on liability by companies that made DES, also known as diethustilbestrol or stilbestrol.

The court ruled that Christine A. Murphy, the woman who brought the suit that led to Monday’s ruling, could not press her suit against E.R. Squibb & Sons, one of about 200 DES manufacturers. Murphy contracted cervical cancer 10 years ago at age 23. Her mother took DES in 1951 and 1952.

Murphy’s lawyers, seeking to extend the 1980 ruling that opened up DES litigation, had argued that Squibb should be held liable because it had a “substantial” share of the DES market.

Squibb made about 10% of the DES sold nationwide during the years at issue and was the second or third largest manufacturer.

Term Not Defined

In Monday’s ruling, the court said that 10% is not a “substantial share” of the market. But the court, in both Monday’s ruling and the one issued in 1980, did not define the term substantial.

“We are very disappointed not only on behalf of Christine Murphy but on behalf of all other DES victims,” said David Chodos, who argued the case before the high court.

The main problem for plaintiffs in the cases is to prove that the manufacturers named in the suits had a substantial share of a market 30 or more years ago, Chodos said.

A ruling that a 10% market share was substantial would have been a boon for suits by DES daughters, Chodos and his partner, Roman Silberfeld, said.

Suits Remain Active

However, despite the loss on the two issues Monday, suits against the drug manufacturers will remain active, he predicted. Unlike Murphy’s suit, which was filed in 1976, most DES suits have been filed since the California court’s 1980 ruling.

All of those more recent suits name more than a single company, and in most instances, the defendants had a combined market share of far more than 10%, often reaching as high as 80%, Chodos said.

In her dissent, Bird charged that Monday’s opinion was “inconsistent” with the landmark 1980 ruling, which like Monday’s decision was authored by Mosk.

In other rulings, the court:

- Struck down by a 6-1 vote a section of San Diego’s City Charter that barred write-in candidates, concluding that the section violates the state and federal constitutions and “renders the election process too restrictive.”

- Ruled 5-2 in a suit by a woman patient who was raped by an orderly at a Kaiser Hospital in the Los Angeles area that the woman did not have to bring her claim to arbitration, as is required in other suits against hospitals, but could expedite it by bringing her suit directly to Superior Court.

- Reversed a court of appeal and upheld on a 5-2 vote a ruling by the farm labor board that the United Farm Workers could represent workers at the San Bernardino-area George Arakelian Farms Inc. because of the rancher’s alleged failure to bargain in good faith with the UFW.